KARUNA SHANKER DUBE Vs. KRISHNA KANT SHUKLA

JUDGEMENT

(1.) PLAINTIFF -opposite party No. 1 Krishna Kant Shukla filed a suit in the Court of the Civil Judge, Lucknow against opposite parties 3 to 5 in respect or certain property situate in the city of Lucknow alleging that they are the co-sharers of this property and claiming deter mination and declaration of their shares and a decree for partition. During the pendency of the suit Krishna Kant Shukla, the present petitioner, filed an application before the Civil Judge on 11-9-1967 under Order 1, Rule 10, Code of Civil Procedure for being made a party-defendant to the suit on the ground that he was a co-sharer in the disputed property. No orders were passed on this application by the Civil Judge and while it was pending on 2-6- 1969 the parties to the suit, namely, oppo site parties 1 to 5 came to a private settle ment and filed a compromise which was accepted by the Court and a decree in terms of the compromise was ordered to be prepared. It is against this order of Judge has been filed. the Civil Judge that the present revision

(2.) LEARNED counsel for the peti tioner raised one short point: It was argu ed that the trial Court was bound, having regard to the nature of the suit, to dispose of first the petitioner's application under Order 1, Rule 10, Code of Civil Procedure and should not have decreed the suit in terms of the compromise without doing so. It is submitted that the petitioner's appli cation under Order 1, Rule 10, Code of Civil Procedure is still on record undecid ed. After hearing learned counsel for the parties I am of the opinion that the sub mission of the petitioner is full of force. The plaint gave a pedigree showing that the disputed property belonged originally to Thakurdin, father of HubTal and it was the ancestral property of the four sons of Hublal, namely, Ram Lal, Kamta Prasad, Saligram and Durga Prasad Dube. Accord ing to the family tree given in the plaint itself Karuna Shanker petitioner is one of the grandsons of Saligram deceased. The plaint proceeds with the averment that Saligram had separated from his other three brothers and his share in the disput ed house was separately carved out. Ac cording to the plaint it is this separate share of Saligram that has been inherited by Karuna Shanker petitioner and on the basis of the separation of Saligram set up by plaintiff-opposite party No. 1 it was claimed that the branch of Saligram had no share in the disputed property and the opposite parties were the only co- sharers. In the application under Order 1, Rule 10, Code of Civil Procedure however, Karuna Shanker contested that there was any separation of Saligram with his other bro thers and it was maintained on his behaU that the disputed property still continues to be joint family property of the opposite parties and the petitioner. The basis of the plaintiff's claim is the alleged separa tion of Saligram. Unless the separation of Saligram is proved by the plaintiff it can not be said that Karuna Shanker is not a sharer in the property. There is a pre sumption of jointness under Hindu Law and therefore there is no presumption of partition or separation and it has to be proved aliunde by the plaintiff-opposite party. It is admitted in the plaint itself that at a certain stage the disputed property was the ancestral property of Saligram, an cestor of Karuna Shanker. On the plaint allegations themselves, in the absence of proof of separation set up by the plaintiff Karuna Shanker would be a co-sharer in the property in which case it would ap pear that Karuna Shanker would possess direct interest in the property and any compromise by which the opposite party sought a declaration of title or status and also partition in respect of the property in respect of Karuna Shanker, a third per son to the suit, would be unlawful be cause such a compromise would be invalid in that it covers the interest of a person not party to the suit. The wordings of Order 23, Rule 3, Code of Civil Procedure are:

(3.) THE revision is accordingly allowed. The order of the Civil Judge dated 2-6-1969 is set aside and the case is remanded to him with the direction that he shall proceed to decide first the appli cation of the petitioner Karuna Shanker under Order 1, Rule 10, Code of Civil Procedure and thereafter deal with the compromise according to law. The parties shall bear their own costs of this revision. Revision allowed.